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UK Report Slams EULAs
draevil writes "Britain's National Consumer Council has completed an investigation into the practice of software End User License Agreements(EULAs) with the conclusion that many consumers are signing away their legal rights and agreeing to unfair terms, which they could never have scrutinized before purchase. The report also acknowledges that even if the EULA were available prior to purchase, it would be unreasonable to expect an average consumer to understand the terms to which they were agreeing. Here are the full report (PDF) and a summary." The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU.
Someone in power has been soundly beaten with the Common Sense Foam Cluebat. (Copyright, All Rights Reserved)
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By replying to this message, you agree to sign away all your rights to me, and once a month, go to a public place, stand on one foot and howl at sky at 12am.
What no replies?
*yawn*
But I always felt that EULAs, especially 'shrinkwrap' ones, never met the old tests for a contract:
- a 'meeting of the minds'
- agreement in exchange for 'a valuable consideration received'
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Would have been awfully nice to see the GPL considered side-by-side with these other licenses.
Does the GPL also create an imbalance between the rights of the distributer and the rights of the consumer?
-fb Everything not expressly forbidden is now mandatory.
UK consumers who have reason to contest contract terms would likely be protected by the Unfair Contract Terms Act 1977.
The EULA has for a VERY long time been a form of consumer abuse that has been tolerated for far too long. While I have little doubt that this is likely to be an attack against Microsoft, once again, but this time it will address a kind of global form of consumer abuse that had likely started with Microsoft but has become a standard practice in the industry.
Of course if it were allowed, every other player in every other industry would hope to disclaim liability for anything and everything they sell you. But most governments, local, regional and national already have consumer protection laws in place to form the base-line of product liability. But for some reason, software as a product or as a service has somehow been overlooked in most areas (though some states in the US have consumer protection laws that include software). It'll be about time to see those same laws apply to software.
If I've signed something away, there should be something in writing with my signature. I don't have it, and I bet the software companies don't, either. IANAL, but how does clicking a button on a VB form constitute a legally binding signature? If I hack the installer program and remove the form, does that mean I'm not bound by the EULA (even if it tells me I'm not allowed to hack the installer program)?
!#@%*)anks for hanging up the phone, dear.
If they revamp how EULAs are used and written, will they still include caveats for government retribution against the impossible case where they find you have done something that is illegal no matter what software you might have used?
http://sycrat.com/sycrat/screenshots/screenshot1.png NO WMDs please
Yes, I know the example is for US cases, but just the same.
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Considering they object to 10 page EULA's for products I wonder how they feel about Terms and Conditions for product and services bought online? Last time I signed up for a server host I read through about 15 pages of terms and conditions which were contained with a tiny scroll box and that company was UK based. As far as I can tell the reasons they give for objecting are equally valid for every UK ISP I've signed upto and every service I've bought online. Should be interesting to see where it goes.
One might argue that if the law is so weakly formulated that it is rendered invalid simply by one party telling the other that it is, then the law is the problem not the EULA. Haven't read TFA so no idea if this is just another misleading summary or not, but it strikes me as strange that would be possible in most any country.
Where I live there's no way to sign away my legal rights. A EULA can demand I agree to being boiled in oil if I reverse engineer the program, but that means less than the pixels used to display the EULA in the eyes of the law. Especially since reverse engineering something to make it suit my needs is explicitly protected by law last I heard.
Come to think of it, don't most EULAs actually include a phrase stating it's not applicable where void by local legislation?
> Contract's a contract...
Under UK law that's not entirely true. If a contract employs unfair clauses those clauses can be nullified. An analogy is, if you borrow £10000 from me and agree that (a) you will repay it with 12 months, and (b) if you don't repay it I can break your legs. This is unfair: if the contract was challenged in court it's highly likely that (a) you would have to repay the debt, and (b) I could not break your legs if you didn't repay within the specified time-frame.
IANAL etc etc
This is where the serious fun begins.
In many country (in EU for example) you cannot give up fundamental right, or agree to give up protection of the law by signing a contract. This in many case nullify the contract utterly. But surprise, surprise, many of those EULA (particularly the one drafted for the US and just translated) just do that, for example in saying they are not liable for any damage occasioned by the software. Although in recent year I saw in a lot of EULA added "except in the country which forbid such clause, in which case it does not apply" or something similar.
I USED to before install go and change the text of the EULA for fun (so that the CEO of the software maker give me his first born). Or delete the text file before install. Or ask my nephew to install your software (kids aren't contractible if parents refuse). Such shenanigan would not happen with a real signed contract.
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If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)
If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000
Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.
So would such a program mean the end of EULAs as we know them? Would software publishers have to fall back to straight copyright and save the legal mumbo-jumbo?
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
Contains a EULA which forbids it from being read.
If you are presented with a contract by a company, you can cross out sections of the contract that you can't live with. If the company's agent accepts that contract, they are bound by it. (subject to vagaries of contract law)
If I were to write a utility that would allow me to electronically cross out sections of an electronic EULA, and then the program (the owner's agent) accepted that modified EULA, would both parties be bound by the new contract? What if my utility allowed me to add sections as well. i.e. If this MS program crashed, MS will pay me $1,000,000
Most EULAs will allow you to print them before accepting them. I could make the same modifications to the paper copy as well. Even if there was a pre-clause that said the EULA couldn't be modified, I could cross that out too.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
I think that the parent's post is probably one of the favorite myths of this site. And, as a matter of law, it is simply not true. When you "accept" GPL software, you "accept" a few very important things:
In this sense, it is an agreement with END USERS. Among other things, it grants to the end user the permission to run the software. It also addresses distribution, but that is not the point.
I also states that you get it without any warranties (non-infringement, merchantability, fitness for a purpose, etc.). And it states that even if you think you had damages because of the use of the software, you'd have no right to recover anything.
I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs.
If you don't agree to those terms, you can reject the offer.
Even under the terms of most EULAs (and most case law), a EULA is only effective if you have some right to reject: return, refund, etc. ** Contrary to what some think, that right to reject doesn't have to be "easy" or obvious. **
If you start a new computer (w/ Vista) for the first time, you are presented with a screen to accept the EULA.
What's (NOT!) funny here is that the only option is to accept and click Next.
There is no option for Cancel. Just poweroff...
In the 1980s, Borland products came with a "treat it like a book" license.
It was written in Plain English. It essentially said you could trade, lend, buy, sell, resell, etc. as long as no more than one person had copies at a time and that the software wasn't being used on more than one computer at a time.
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...which one reason why lots of people have, rightly or wrongly, replaced their EULA with the pirate bay version. Download it illegally, ignore the license, install and play with it. If they need it or are using it and feel guilty buy it. Even when they do buy it a lot of users continue to ignore the EULA. I'm not condoning this behavior but I am saying that onerous conditions in the EULAs directly contribute to piracy.
The other thing is that no one reads all their EULAs thoroughly. If they did heavy computer users would be complaining about spending weeks installing software (or not understanding something about the EULA), when in reality software installation is something people often are doing in their "spare" time after all their other obligations are met. I've found that those people who suggest they do read all their EULAs are either doing it for a job or socially impaired or just plain liars.
Most people just understand that unless it's free software it's not legal to copy. Beyond that they use their software however they choose paying no mind to the EULA. In fact I've come across many a game forum where people openly are flouting the terms of the EULA and the company who creates the game turn a blind eye and don't wish to even discuss licensing issues beyond regurgitating the "copying is stealing" mantra. This is enough enforcement for the company to benefit from the inclusion of the EULA for individual users. Only when the software is used on a grander scale contrary to the EULA does the company act to put a stop to that use, and even then only when it hurts their commercial interests.
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Q: When is a contract NOT a contract?
A: When it is not legally valid and violates the law.
If there is no meeting of the minds, there is no contract, not matter what one party writes down.
If there is an adhesion contract where one party receives its consideration (money) before releasing the terms of its offer and the terms, when enforced are unconscionable, or if there is a mistake because the two parties reasonably think the terms of the contract to mean different things, a court can and should put such contracts aside. The fact that most people do not fight for there rights or that some judges may not correctly apply the law does not change the legal principles.
In most EULAs and TOS, there is no level playing field. Other than getting in on some sort of class action suit where all the money goes to the lawyers, there is no way most consumers will take on corporate lawyers. The EU is not into class actions like the US. It makes sense for the laws to level the playing field and keep contracts fair.
"I'll point out, most people think that limitations on liability that limit your damages to $0 as some of the most heinous parts of EULAs." True, BUT. Most people think if they pay something for software, they have a legal right to expect that it does what it says. However, if they didn't pay for it, it would be grossly unreasonable to expect the same legal rights.
"The NCC recommends that the European Commission bring softwre licenses under the same consumer protections that apply to other products in the EU."
Software companies has enjoyed unprecedented loose consumer protections. In fact, no protections has existed at all. The only protection is really the laws about advertising. That is, the software should act and do something that atleast is near what the adverts says.
If EU would bring normal consumer protection to software it should also work as expected. That is, it should not crash and burn without the manufacturer fixing it for you. With the same protections as for hardware it would cost countless millions to make your users the beta testers.
My work as an sysadmin would more be about tailoring solutions and less about getting expensive systems running with bandaid, duct-tape and broken patches that shouldnt be there in the first place.
Its about time software stops being treated like books and start living under the same rules as everything else. If a patch hooses my system the most i can hope for today is a patch regardless if it costs me millions in business. Most often in my case the answer has been "buy our next version, it really works this time, promise, cross my heart".
Things like this would punishing poor quality and i think that is really about time. Right now software really sucks.
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My perspective is from the other direction: Find some basis to "invalidate" the GPL (I love the saying "...untested in court..." as though it is important)... Find that legal basis and ALL software contracts derived from copyright law are invalidated as well. Essentially if the author does not have the rights needed to license under the terms of the GPL, then he does not have some of the rights that copyright supposedly grants.
One argument will be "without these licenses, software makers will not produce the products." We all know how unlikely that is. Besides it would be fine and dandy if the playing field were more open. Another argument is that vendors will have to go back to individual agreements with each customer. I wonder what would be so wrong with that? If you want me to sign a contract in order to use your product, by all means, put the contract in front of me, let me evaluate its terms side-by-side with its consideration, and I'll get back to you -- maybe your competition offers better terms. Maybe your big ugly contract influenced me during the critical moment when I was hot to buy, and now I'm not so sure.
FYI, the only software I've ever written for profit, did indeed have an individually negotiated contract with each client, and the legal terms were specified in that, and would be fully enforceable in the state where I was doing business.
But these mass-market software folks want to have all the power of an individual contract (actually, they want more than the assignee can legally grant via contract, sometimes), but they want none of the obligations, and want to offer no real consideration. EULA's won't stand up as contracts, in general.
The GPL on the other hand, holds if the grantor actually has the appropriate rights under copyright law.
In essence, to "Test the GPL in Court" and find it invalid, would mean invalidating *copyright law* to a certain degree. In other words, this is not going to happen.
-fb Everything not expressly forbidden is now mandatory.
I'd love to see someone do a return-to-store test case:
Go to a Big Box Computer Retailer, use cash to buy an expensive item you know the manager won't "just let you return" in the interest of customer satisfaction, take it home, open it, start to install it, click "no, I don't agree," then try to return it. Use cash so it's clear you don't have recourse through your credit-card company.
The store says no. File a several-hundred-dollar-plus-court-fees small-claims action.
Wait for the store to transfer the case to regular court. Amend your suit to include legal fees and triple damages for being an ass, offering to settle for the original purchase price plus legal fees incurred so far all the while, so the judge knows you aren't being an ass.
Wait for the ruling that the contract was not complete until you click on "yes, I agree." The judge should rule that either:
*you had a contract with the store, in which case the product did not meet ordinary merchantability standards i.e. it would not work without imposing other obligations not present at the time of the contract, in which case you can void the contract
or
*The store is acting as an agent for the software maker. You gave the store owner funds to hold until you entered into a contract with the software maker. If you did not enter into the contract you have a reasonable period of time to seek a refund from the store.
In the worst case, the judge will let the store off the hook but allow you to add the software maker as a co- and later sole-defendant, and rule that the software maker owes you a full refund plus sales tax. In this case you will be out your legal fees though.
In any case, there will be a ruling giving consumers protection up to the point that they say "yes, I agree."
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A contract is binding when you agree to it. I have always been tempted to simply mail them a letter before installing the software in which I say "I am writing to inform you that I do not agree to your EULA, and I do not agree that I need a license to use this software. Since you sold me these nice shiny CDs containing the software, I am going to go ahead and install it. Have a nice day." Now this violates the Do Not Poke The Bear principle, but is on firmer legal ground than just ignoring it and hoping it will go away. The question is, when their lawyers send you a reply, what can they argue about? You didn't violate copyright (you bought a legal copy from the owner). You didn't agree to a contract so it isn't breach of contract. What legal grounds do they have to say "don't use our software", other than "we don't give you permission"? And who says I need their permission? It's my computer. If nothing else, their demand letter would have to include a refund check, otherwise they are in violation of their own EULA.
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Let's call it by its true name: Coercion.
By the time you're presented with the EULA, you've already exchanged money for a box advertising the features of the software. That's a contract if ever I heard one. The EULA attempts to force you into a new contract, with NO CONSIDERATION beyond releasing their hold on the features and properties of the software that are already yours. That is coercion.
And no, disclaiming on the box that you have to agree to a contract is NOT sufficient if they are not disclosing the terms of the contract itself.
IANAL, but I have studied with one.
The evidence I point to the most is that I work for a state university. As a state employee I can't sign anything for the university, it all has to be sent to legal. Have to make sure that everything is kept in a row as far as what the state agrees to. However they've told us we can just click through on the licenses on software. Clearly, it is because they don't believe they are enforceable, and they are a rather cautious lot.
As for being a contract it fails in several ways:
1) As you noted, there's no exchange. A contract MUST have an exchange to be valid. Even if you do something like quit a claim to a house (like you helped your kid by co-signing for it and now you are giving it over to them) it will still read "For the sum of $10 and other valuable consideration." Why? If there wasn't an exchange, the contract would be null.
2)It's ex post facto. Contracts have to happen before the sale, not after. That's why when you buy a house all the loan documents and such are done before you take ownership, before money changes hands. You can't try and say "But you agreed to this!" after the fact, you do it before hand or it is too late.
3) Not open to negotiation. That's what the "meeting of minds" thing means. A contract has to be open to negotiation. You don't have to meet face to face or anything (often it is done through the mail) and you certainly don't have to accept what the other side proposes, but you have to be open to it. You can't hand them a contract to sign and then have no way to get back to you.
4) No proof of agreement. That someone clicked "I agree" means nothing. There's no proof you agreed to it, or indeed that you were capable fo doing so. What happens when a minor buys a game and installs it? A minor can't enter in to a contract on their own, the parents never cosigned, etc.
There is really nothing about an EULA that meets the normal standard of what a contract is. If they want a contract governing their software, they need to have you sign it beforehand. However I'm going to guess that if people are presented with a 10 page wodge of text (EULAs are longer than any rental agreement I've seen) to read and sign when they try and buy an Xbox game, that it'll prove quickly to be an unworkable business model.
There is a difference, in the EU consumer rights mean something.
Do you know about dead pixels in LCD screens? The one the industry tells you are acceptable? Dutch law clearly FORBIDS this. ANY LCD with a single defective SUB-pixel has to be replaced. No argument possible. The netherlands is the only country where sony replaced every PSP with ANY pixel problems.
So you are right in saying these EULA's are not illegal in the US, but the EU has far better laws for protecting the consumer and it has long been known by any who follows consumer afair programs they are entirely without worth within the EU and any company that tries to take you to court over one will find a very hostile judge. Hence why they never been tested, the companies know they will loose it.
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